Mr. Michael G. West: Mr. Chief Justice and May I please the Court, Good morning.

Just prior to yesterday’s recess, I was discussing this Court’s decision in Daniels versus Louisiana.

which held Taylor versus Louisiana not retroactive and in particular, that part of the Daniels case dealing with the effect upon the criminal justice system.

If Taylor were held to be retroactive.

Ross’s contention is that the retroactive application of Ham, no doubt will some effect on the criminal justice system within the Commonwealth of Massachusetts.

But not the calamitous effect, urged on this Court by the Commonwealth.

We also suggest that the decision of the First Circuit in Ross does not have the wide ramification suggested by the Commonwealth.

Yesterday, I mentioned the couple of those limitations, but one that I would like to mention now and what triggers the Ross Doctrine in asking questions as to racial prejudice is that the Defense Counsel must submit questions to the Trial Judge to ask the perspective Jurors.

Failure to do that and failure of the Trial Judge to refuse those questions, or similar questions to the same effect, will not bring the Doctrine in Ham or Ross into existence.

Also, as a practical matter, in order to challenge one’s conviction based upon the Ham case, a criminal Defendant probably would still have to be in jail.

There has been -- 36 months have pass since the Ham decision.

Presumably, all States except Massachusetts has followed the Ham decision and even in Massachusetts, in the second Ross decision, the Supreme Judicial Court although affirming Ross’s conviction said that in future cases, it is good policy to ask these questions as to racial prejudice, although not constitutionally required.

And in addition, the legislature of Massachusetts has twice, since the second Ross decision in May of 1973 revise the statute upon which this suit is predicated to for now provide that the Trial Judge must ask or shall ask, questions as to racial prejudice to the perspective jurors.

Unknown Speaker: Mr. West what is that, the new statute and would any defendant ask for it?

Mr. Michael G. West: Yes.

Unknown Speaker: No matter what the situation?

Mr. Michael G. West: Yes.

In addition, it appears that the statute says and it is on page 42 of my brief.

Unknown Speaker: And whether or not there are any witnesses, you do no have to suggest --

Mr. Michael G. West: No.

Unknown Speaker: The witnesses are going to be?

Mr. Michael G. West: No.

Only if the Court believes that this possible pre-conceived opinions towards the credibility of certain classes of persons, they do not limit it to racial prejudice.

Unknown Speaker: What do you think the scope of the Constitutional, a rule should be?

Also, I would take the position of the dissent in the Ham case and that is that questions that arises to a serious nature of prejudices should also be included such as the beard in the Ham case.

Such as someone’s religious preference.

Unknown Speaker: But what if the defendant is not a member of the minority group?

Mr. Michael G. West: Well, it depends on the case your Honor.

For example, if the case involved capital punishment?

I think that it would be constitutionally required to ask.

Unknown Speaker: I am talking about racial.

Mr. Michael G. West: Yes.

Unknown Speaker: What kind of -- suppose the defendant is not a member of the minority he asks for that the jury be interrogated about racial prejudice?

Mr. Michael G. West: I think in that case, it is up to the Trial Judge to find out if there is any possible racial prejudice in that case.

For example.

Unknown Speaker: So, you are saying --

Mr. Michael G. West: The victims or the defendant, or the witness --

Unknown Speaker: So, you really, so you say it is not limited to where the defendant is a member of the minority group?

Mr. Michael G. West: That is correct, and I think I answered it yesterday for Mr. Justice Rehnquist.

Unknown Speaker: Now where does it stop.

Any Defendant at any time, I take it then could be constitutionally entitled to have the Jury interrogated about racial prejudice, if he ask for it.

Mr. Michael G. West: If he asks for it and if the nature of the case, at all suggests that the question of black and white is part of that case.

Either if the defendant or the victim or a witness is of another racial minority.

I think in those cases, it is constitutionally required.

Unknown Speaker: Well, I gather then the Judge has to be acquainted, because what may develop during the trial as to the identity of the witnesses?

Mr. Michael G. West: Yes.

Unknown Speaker: You say they might be maybe a white accused but to maybe, you have a black witness?

Mr. Michael G. West: That is right.

Unknown Speaker: But the Judge and Defense Counsel has first to tell the Judge, listen and then the Judge has to make a preliminary determination, as I understand your brief.

That questions jurors who may have prejudices?

Mr. Michael G. West: That is right.

Unknown Speaker: But the Defense Counsel has a burden?

Mr. Michael G. West: That is right and if failure of the Defense Counsel to submit any questions, automatically does not trigger either the Ham doctrine apparently, or the Ross doctrine of the First Circuit.

Unknown Speaker: But why do you limit the right to a member of the minority?

I suppose you would say any Defendant, white or black.

Mr. Michael G. West: That is right.

Unknown Speaker: Could have the instruction, but how about the prosecution?

Mr. Michael G. West: Yes, I believe so.

Unknown Speaker: But the defense can not get it by asking for it because I understand what you brief says you do not quote the full statute.

But the Judge has to be satisfied that some Jurors may have prejudices?

Mr. Michael G. West: That is right, and that is exactly the Ross case because there were not only one question submitted by Ross but Co-counsel or Co-Defendants Counsel submitted approximately 30 questions.

Unknown Speaker: Now, what I am getting at it is I understand that statute.

There is a burden on the defense.

Persuade the Judge that this is a situation and this trial will involve situations where Jurors may have prejudices.

Mr. Michael G. West: That is right.

Unknown Speaker: And, until he persuades him of that, the Judge has no duties.

I understand it to permit these questions.

Mr. Michael G. West: That is right.

Unknown Speaker: Is that right?

Mr. Michael G. West: Yes, and in fact I think there is a further burden, not only to submit that and to convince the Judge that there is a possibility of prejudice, but in Ross case, I think the Judge was sort of convinced of that, that they maybe some prejudice except he felt that asking these questions would not be helpful.

Unknown Speaker: But all of you would say -- to persuade the Judge, you would say you would not have to show any more other than the witness, as black?

Mr. Michael G. West: Yes.

Unknown Speaker: That is all you have to show.

Mr. Michael G. West: I would think so your honor and I think the—

Unknown Speaker: If you have to show anymore, I take it you question the constitutionality the statute.

Mr. Michael G. West: That is right and that is exactly what we are doing here because these—

Unknown Speaker: Well, that is almost a per se rule then?

As I understand you, all you have to say, the Judges, the defense is going to have a black witness and then he must permit the questions

Mr. Michael G. West: Yes.

Unknown Speaker: When they ask of the.

On that basis you says, I do not know what you would not say that as long as the Jury is mixed, you must ask the Jury this question because witnesses are either going to be white or black.

Mr. Michael G. West: Yes.

I think those questions are constitutionally required particularly however in cases of violent crimes.

At the moment, I am prepared to limit the -- my per se rule to violent crime because those apparently are crimes in which racial prejudice most stands out.

Unknown Speaker: (Inaudible)

Mr. Michael G. West: I do not believe so and I do not think it is in the appendix either.

Unknown Speaker: Why do you limit it to violent crime?

Mr. Michael G. West: Well, first of all, the First Circuit limited to violent crimes.

Unknown Speaker: But, you are taking the position here that it should be limited to violent crime.

Mr. Michael G. West: Yes.

My personal preference would be for all crimes.

But, for purposes of this argument, I think I would limit to violent crimes because those have the most potential for racial prejudice.

Unknown Speaker: Well, how about demonstrations convictions for disturbing the peace to those who have no violent overtones and yet certainly during the 60’s, there were occasional racial implications of those cases.

Mr. Michael G. West: Yes.

As I said, my personal preference would be to have it for all crimes such as the Ham case was certainly not a violent crime.

Unknown Speaker: No.

Mr. Michael G. West: Possession of marijuana.

Unknown Speaker: (Inaudible) satisfy as your personal preferences.

Mr. Michael G. West: Which statute Your Honor?

Unknown Speaker: This new statute.

Apparently the new statute is not limited to a cases of prosecutions from violent crime, is not it?

Mr. Michael G. West: Well, it is not.

It does not satisfy me however because in reading the new statute, it has to be triggered by the Judge, meaning the Judge has to be persuaded that there are some factors.

And, I would like to take that discretion from the Judge and trigger this question.

Unknown Speaker: I also understand that as you told us earlier that it is a per se rule.

Once you say we have a black witness or you suggest it to Justice White, if you have a mixed jury, black and white, are then, automatically the Judge has to ask the question.

He has not discretion.

Mr. Michael G. West: No, he has to ask the question if Defense Counsel requests it.

Unknown Speaker: Or you would want him to ask him without a request from Defense Counsel?

Mr. Michael G. West: No, no, no.

I would limit that to only when Defense Counsel asked those questions.

I think that is the strategy decision of Defense Counsel whether to inject that issue into the trial.

Unknown Speaker: (Inaudible)

Mr. Michael G. West: Yes, in my opinion it would.

Justice Thurgood Marshall: If it was just a purely technical, suppose the witness was the ballistics expert.

Mr. Michael G. West: I think those technical witnesses have severe impacts on Juries, and I would certainly include that type of a witness in my discussion.

Mr. Michael G. West: Well, I think certainly—I would even do it in that case because the birth certificate may well be a crucial issue in the case.

Justice Thurgood Marshall: What, would you demand that brings it have nothing to do with the certificate?

Mr. Michael G. West: Yes.

I understand that.

Justice Thurgood Marshall: I guess one if you want to paint with a pretty broad brush.

Mr. Michael G. West: I think I am and I think that in issues of racial prejudice when must paint with a broad brush because of the Fourteenth Amendment, and the purpose behind the Fourteenth Amendment, to stop invidious discrimination, and I think that when you give Judge's discretion in this area, you wind up with cases like the Ross case, limited to special circumstances or when one is the special target for racial prejudice.

And, I think that I would rather air on the side of the being broader in this area, than being limited and restricted as I think the Supreme Judicial Court was.

Justice Thurgood Marshall: (Inaudible) but you are not sure we can figure at this time?

Mr. Michael G. West: Well, I cannot be sure.

Unknown Speaker: Mr. West, you continue to talk in terms of racial prejudice there can be all sorts of prejudice, disassociated with Reyes, it was not down any years ago that a Republican in Mississippi but not the most popular fellow, or today, a member of the Irish Republican Army might find himself unwelcome in some communities, would you extend the constitutional rule to any situation in which arguably there might be prejudice against particular Defendant or a particular witness in the case?

Mr. Michael G. West: Yes, I would.

And, the decision of yours in Ham approves those State cases upon which all which relied.

And, some of the State cases deal with of—I remember one of them dealt with a Political Party, the no-nothing-party.

I think it was people versus Reyes.

Although, I am not sure of the name of the case and that case was approved by this Court, which included that that one must ask questions as to prejudice against.

Justice William H. Rehnquist: Mr. West, I wrote Ham and we did not approve those cases.

We sighted them and we made it quite clear in Ham that the principle was based on Equal Protection clause and the racial implications of the Fourteenth Amendment.

Mr. Michael G. West: Although as I recall in your decision Mr. Justice Rehnquist, you said that you relied on Ham, and all those State cases upon which Ham relied.

And, I took that as you approved the ore reaffirm Aldrich and you also reaffirmed those State cases upon which Aldrich relied.

Justice William H. Rehnquist: Well, how then would you explain our rejection of the voir dire request with respect to Beers?

Mr. Michael G. West: Well, I think that what you were saying was that the Beer Controversy did not rise to a serious level.

That did not rise to a constitutional right.

Although, certainly the one has to raise it but very careful to limit it to because of the purpose of the Fourteenth Amendment.

Justice William H. Rehnquist: Well, then so limiting, I do not see how you can say that the case itself stands for anything more than that?

Mr. Michael G. West: Well, it was just from your language Mr. Justice Rehnquist that I assumed that you were affirming those State cases.

In fact, I am trying to find that --

Justice William H. Rehnquist: There is the language it says that referring to all and read it, it says the Courts opinion relied upon a number of State Court holdings throughout the Country, to the same effect.

But, it was not expressed and grounded upon any constitutional requirement.

Now, I take it at some of the State cases were grounded in a constitutional requirement?

Mr. Michael G. West: Yes, the Sixth Amendment.

Justice William H. Rehnquist: Well, so Aldrich could not possibly have itself have approved those cases because it did not rest on the constitutional ground.

Mr. Michael G. West: Yes, except the language that I have quoted in some papers in front of me.

It says that the Aldrich conviction relied on -- the Ham conviction was relying on the firmly established precedented Aldrich, and the numerous State cases upon which it rely.

And, I took that to mean that—

Unknown Speaker: Where did you get that one?

Mr. Michael G. West: It was from the Ham case itself.

If I can have a moment later on, if you would like, I could find the exact language, Your Honor.

If I can continue?

The point I was trying to make is that this Court does not have to reach the issue of the impact on the criminal justice system to Massachusetts or the good faith reliance on prior precedent because the issue in Ham goes precisely to the truth finding function of the Jury and errand the suspect, Ross’s conviction and therefore according to the William’s case, would invoke the retrospective application of Ham, without regard to good faith reliance and effect on the criminal justice system.

We are here dealing not with an exclusion of evidence case or an illegal search and seizure case, which this Court has generally not held to be retroactive.

But, we are dealing with the case which shows the possibility, the probability, the likelihood that the Ross jury acted in arbitrary way, not based upon the evidence and but rather based upon the race of Mr. Ross, and the conviction resulted there from.

The purpose of applying Ham retroactively would be to guarantee an accused a totally fair and impartial tribunal, and, to protect the integrity and dignity of the judicial process, from any hint of bias or prejudice.

Ross was not afforded either of these protections.

The duty that the Court’s of the Commonwealth to Massachusetts owes the James Ross Jr. requires no less.

If I can move on to the issue of the applicability of Ham to Ross, Ham as you know, was a case involving the possession of Marijuana.

The Trial Judge was asked two question to ask the perspective Jurors two questions, he refused to do so.

And, ask only those general questions provided in the South Carolina statute.

This Court said that the missing element in the Ham decision was that the Court did not focus the attention of the perspective Jurors as to any racial prejudice they might entertain.

And, I would suggest to this Court that that is also the missing element in the Ross case.

The Ham case and the Ross case are most similar.

Each involved the black defendant.

In each the principal witness was a Police Officer or Quasi Police Official.

In the Ross case, he was a Security Officer, dressed in the Boston Patrolman’s uniform, patrolling Boston University.

In order to be found guilty, both Ham and Ross needed the unanimous verdict.

Each final Jury was composed of 10 whites and 2 blacks.

The statutes upon which each State operates is almost identical, asking the same questions.

The procedure in each State is the same.

So, even wide discretion to the Trial Judge.

And in each case, two Jurors were excused because of racial prejudice, in the Ham case and the Ross case.

And finally, each question that was presented to this Court for decision in the cert petitions filed by Ross and Ham were almost identical.

Aldrich was a case whose facts are strikingly similar to Ross.

The Ham case relied I think heavily on Aldrich and affirmed Aldrich, and I think the significance of the Ham case was that it reaffirmed Aldrich and gave it explicit constitutional underpinnings.

Ross asserts that the trial judge failure to ask specific questions as to racial prejudice is not only constitutional error, but requires reversal without the need to show actual prejudice.

It is twistic logic as the Commonwealth asserts that on the one hand, Ross was not entitled to have these questions asked.

But on the other hand, he must show actual prejudice.

One wonders how a criminal defendant can show actual prejudice without being able to ask questions of perspective jurors.

Unknown Speaker: You said reversal or you meant affirmance?

Mr. Michael G. West: I meant the reversal of this conviction and affirmance of the Court of Appeals decision.

Can the Commonwealth assure James Ross, that any error here was harmless beyond the reasonable doubt?

Can the Commonwealth assure this Court that not one of the jurors chosen, harbored any prejudice against Ross because of his race?

We can not, especially because of the conclusions, reached by the Kerner Commission and the recent events concerning racial segregation and integration in Boston, even if one the 12 jurors were prejudiced against Ross, his right to a fair trial was impaired.

Seemingly in recognition of the difficulty of criminal defendants to show actual prejudice, this Court on several occasions has dispensed with this requirement.

In Aldrich, and in Ham, in Peter versus Kiff, the Court said more over, if there is no showing of actual bias in the tribunal, this Court has held, Due Process is denied by circumstances that create the likelihood or the appearance of bias.

Same result in Taylor versus Louisiana, the defendant there did not allege that the failure to have woman on the jury was actually prejudicial.

In conclusion and summary, although Massachusetts abolished slavery in 1783, racism is still part of American life.

So much so that the Kerner Commission report stated 1968 that race prejudice has shaped our history decisively in the past, and now threatens to do so again.

One cannot doubt the validity of that part of the Kerner Commission report.

Certainly, this Court in both Aldrich and Ham have recognized that problem and Ross asked that you do so again.

Failure to afford James Ross, a new trial after struggling for over 5 years, and 7 appellate hearings is as stated so eloquently by Mr. Justice Marshall to see this Court’s decision in Ham versus South Carolina still born, and to write an epitaph for those essential demands of fairness, recognized by this Court over 40 years ago in Aldrich.

Thank you.

Chief Justice Warren E. Burger: Do you have any further Mrs. Smith?

Argument of Barbara A. H. Smith

Ms Barbara A. H. Smith: Yes, Your Honor.

I would just like to address the Court on the new statute to which is Mr. West is referred too.

That statute requires that the trial judge make a determination, whether the circumstances of the case require that the questions be posed.

Unknown Speaker: (Inaudible)

Ms Barbara A. H. Smith: Pardon me?

Unknown Speaker: Has a procedure been developed for the Administration of the statute at trial?

Ms Barbara A. H. Smith: Not to my knowledge.

Not to my knowledge, Your Honor.

Unknown Speaker: You, I think in an answer to this question, we were told that the statute itself is not here in the papers, but is it paraphrased anywhere or described—

Ms Barbara A. H. Smith: Mr. West I believe, has referred to it in his brief.

Rebuttal of Michael G. West

Mr. Michael G. West: On page 42.

Unknown Speaker: Page 42 of --

Chief Justice Warren E. Burger: (Inaudible)

Mr. Michael G. West: No, it is only the recent Amendment Your Honor.

Rebuttal of Barbara A. H. Smith

Ms Barbara A. H. Smith: I would be very happy to send the copy, I will and give that to you now if you like.